Date: 20021010
Docket: 2002-621-IT-I
BETWEEN:
YVONNE HENRY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for judgment
Little, J.T.C.C.
A. FACTS
[1] The Appellant was born in Jamaica. The Appellant and her 10-year old son moved to Canada as landed immigrants in 1993.
[2] In 1993 the Appellant and her son lived with the Appellant's sister and brother-in-law in Toronto.
[3] The Appellant and her son were unable to continue to live with the Appellant's sister and in 1994-1995 the Appellant and her son moved into an apartment that was rented by a girlfriend of the Appellant. The Appellant paid $300.00 per month as her share of the rent.
[4] The girlfriend of the Appellant was deported by Canadian Immigration authorities to Jamaica and the rent of $650.00 per month for the apartment was more than the Appellant could afford to pay.
[5] At the time that the Appellant's girlfriend was deported to Jamaica the Appellant met Lloyd Dean on a bus. Shortly after the initial meeting the Appellant asked Mr. Dean if he were interested in sharing part of the rent of the apartment with her and Mr. Dean agreed to do so.
[6] Mr. Dean moved into the apartment with the Appellant in 1995 and paid for approximately one-half of the rent. In 1996 the Appellant gave birth to a daughter. Lloyd Dean was the father of the child.
[7] The Appellant filed income tax returns for the 1997, 1998 and 1999 taxation years in which she indicated that she was single.
[8] From 1996 to 2000 the Appellant received child tax benefits from the Government of Canada for her son and her daughter. The amount of the child tax benefits received by the Appellant was based solely upon the income received by the Appellant.
[9] Sometime in 1998 an official of the Canada Customs and Revenue Agency (the "CCRA") talked to the Appellant by telephone. During this conversation the official asked the Appellant if she was living with Lloyd Dean. The Appellant replied, "we live together".
[10] On the 19th day of May 2000 Child Tax Benefit Notices were issued for the 1996, 1997 and 1998 base years. The net effect of the said Notices was to combine the Appellant's income with the income of Lloyd Dean and reduce the amount of the child tax benefits that the Appellant might claim.
[11] On the 18th day of August 2000 Child Tax Benefit Notices were issued for the 1998 and 1999 base years. The net effect of the said Notices was to combine the Appellant's income with the income of Lloyd Dean and reduce the amount of the child tax benefits that the Appellant might claim.
[12] As a result of the Notices issued by the CCRA the Appellant was obliged to return a major portion of the child tax benefits that she received for her son and daughter.
[13] The Appellant maintains that the relationship that she had with Lloyd Dean was nothing more than a "rent sharing" arrangement and therefore she should not be required to file her income tax returns on the basis that she had a common law marriage with Lloyd Dean.
B. ISSUE
[14] Did the Appellant have a common law relationship with Lloyd Dean in the 1997, 1998, 1999 and 2000 taxation years?
C. ANALYSIS
[15] The statutory provisions providing for child tax benefits require that the spouse's income be taken into account. Subsection 252(4) of the Income tax Act (the "Act") reads as follows:
(4) Idem. In this Act,
(a) words referring to a spouse at any time of a taxpayer include the person of the opposite sex who cohabits at that time with the taxpayer in a conjugal relationship and
(i) has so cohabited with the taxpayer throughout a 12-month period ending before that time, or
(ii) would be a parent of a child of whom the taxpayer would be a parent, if this Act were read without reference to paragraph (1)(e) and subparagraph (2)(a)(iii)
and, for the purposes of this paragraph, where at any time the taxpayer and the person cohabit in a conjugal relationship, they shall, at any particular time after that time, be deemed to be cohabiting in a conjugal relationship unless they were not cohabiting at the particular time for a period of at least 90 days that includes the particular time because of a breakdown of their conjugal relationship;
(b) references to marriage shall be read as if a conjugal relationship between 2 individuals who are, because of paragraph (a), spouses of each other were a marriage;
(c) provisions that apply to a person who is married apply to a person who is, because of paragraph (a), a spouse of a taxpayer; and
(d) provisions that apply to a person who is unmarried do not apply to a person who is, because of paragraph (a), a spouse of a taxpayer.
[16] This definition requires us to consider the meaning of a "conjugal relationship" i.e., when can two persons be considered to be living in a conjugal relationship.
[17] A very useful analysis of the meaning of a conjugal relationship can be found in the decision of my colleague Lamarre Proulx, J. in Sylvie Milot v. The Queen, [1996] 1 C.T.C. 2247. Her Honour Judge Lamarre Proulx said at page 2250:
In their book, Introduction to Canadian Family Law, Carswell, 1994, the Ontario authors Payne and Payne refer to the judgment by Kurisko J. in Molodowich and Penttinen, 17 R.F.L. (3d) 376. I cite these authors at pages 38 and 39 because it seems to me they provide an excellent synthesis of the elements that must apply in order to determine whether two persons are living in a conjugal relationship:
Not all arrangements whereby a man and a woman live together and engage in sexual activity will suffice to trigger statutory support rights and obligations. As was observed by Morrison J.A., of the Nova Scotia Court of Appeal:
I think it would be fair to say that to establish a common law relationship there must be some sort of stable relationship which involves not only sexual activity but a commitment between the parties. It would normally necessitate living under the same roof with shared household duties and responsibilities as well as financial support.
More specific judicial guidance as to what constitutes cohabitation or a conjugal or marriage-like relationship is found in a judgment of the Ontario District Court, wherein Kurisko D.C.J. identified the following issues as relevant:
(Note: I will refer to the issues cited by Kurisko D.C.J. and I will insert the comments that were made by the Appellant when asked about these issues at the trial.)
1. Shelter
(a) Did the parties live under the same roof?
Comment Yes
(b) What were the sleeping arrangements?
Comment: The Appellant said, "when we had two bedrooms we basically had to sleep together. But when we went to the three bedrooms then obviously I could get a room with my daughter and he had one, which he spent most of his time in, and my son had the other one. (Transcript page 111)
(c) Did anyone else occupy or share the available accommodation?
Comment: The Appellant's son and daughter.
2. Sexual and Personal Behaviour
(a) Did the parties have sexual relations?
Comment: The Appellant said that when she had a room by herself sex was very irregular. The Appellant said that in the later years she only had sexual relations with Mr. Dean when she was forced to do so.
(b) Did they maintain an attitude of fidelity to each other?
Comment: The Appellant said that Mr. Dean had lady friends but he did not bring them to the apartment.
(c) What were their feelings toward each other?
Comment: The Appellant's answer to this question was "NIL".
(d) Did they communicate on a personal level?
Comment: The Appellant's comment "No".
(e) Did they eat their meals together?
Comment: The Appellant said that Mr. Dean would always take his food and eat his meals in his room and he would not eat with the family.
(f) What, it anything, did they do to assist each other with problems or during illness?
Comment: The Appellant said that she took care of her own problems and Mr. Dean never helped her in any way.
(g) Did they buy gifts for each other on special occasions?
Comment: The Appellant said with the exception of one Christmas present which Mr. Dean gave her when he first moved into the apartment in 1995 he never gave her a gift on any occasion.
3. Services
What was the conduct and habit of the parties in relation to:
(a) preparation of meals
Comment: The Appellant said that she prepared virtually all of the meals. The Appellant said that Mr. Dean would on infrequent occasions buy food from a take-out restaurant and bring it to the apartment.
(b) washing and mending clothes
Comment: The Appellant said that she washed and mended her clothes and her children's clothes and Mr. Dean washed his own clothes.
(c) shopping
Comment: The Appellant testified that she purchased virtually all of the groceries using her own money. The Appellant said that Mr. Dean would occasionally purchase beef or chicken but never other grocery items.
(d) maintenance
Comment: The Appellant said that this was her responsibility. She said that either she or her son would take care of maintenance problems in the apartment suite or she would telephone the superintendent. The Appellant said that Mr. Dean did not assist with any of the maintenance problems.
4. Social
(a) Did they participate together or separately in neighbourhood and community activities?
Comment: The Appellant answered "separately". The Appellant said that frequently Mr. Dean would go out by himself.
The Appellant said "He lives his own life and I live mine". The Appellant also said that Mr. Dean would frequently take holidays to the United States or elsewhere but he would never ask the Appellant to accompany him on these holidays.
During the trial the following exchange occurred:
His Honour - Is it your view that you were sharing an apartment as opposed to living as husband and wife...?
The Appellant - Sure, that's all we were doing.
(Transcript p. 60)
(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards each other?
Comment: The Appellant said that after they moved to a three-bedroom apartment Mr. Dean's children from a previous marriage would occasionally come to their apartment for dinner. On these occasions Mr. Dean would usually prepare the meal.
5. Societal
What was the attitude and conduct of the community toward each of them and as a couple?
Comment: The Appellant said that people in the community knew that we lived together but they did not see us together. However the Appellant stated: "He is always going out by himself and I am always by myself".
The Appellant also said that she went to church but Mr. Dean never went to church with her.
6. Support (economic)
(a) What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.)?
Comment: The Appellant said that Mr. Dean only paid for approximately one-half of the rent and the cost of a babysitter for his daughter. The Appellant said that Mr. Dean seldom bought any food and never bought any clothes for his daughter. The Appellant also testified that Mr. Dean never bought any furniture for the apartment and he never paid for any recreation or entertainment expenses for the Appellant or his daughter. The Appellant also said that she personally paid the utility bills and other expenses of operating the apartment.
(b) What were the arrangements concerning the acquisition and ownership of property?
Comment: As noted above the Appellant paid for all of the furniture and the Appellant did not own an automobile or any other assets. The Appellant said that the only piece of furniture purchased by Mr. Dean was a crib for his daughter.
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
Comment: The Appellant maintained that in her opinion the overall relationship was basically rent sharing. The Appellant testified that at the time they started to share the rent she was hopeful that she could establish a normal relationship with Mr. Dean. However, during the period that they shared the rent she determined that this was impossible. The Appellant said she discovered that Mr. Dean was very mean and cold to her and the family and in the year 2000 she forced him to leave her apartment.
7. Children
The Appellant stated that Mr. Dean was the father of her daughter.
[18] From an analysis of the above comments I have concluded that the Appellant had established a common law relationship with Lloyd Dean in 1995 which continued in 1996 and 1997. However, I have concluded from the testimony of the Appellant that this common law relationship broke down sometime in 1997. Consequently, it follows that in 1998, 1999 and 2000 the Appellant and Mr. Dean had nothing more than a rent sharing relationship.
[19] Before disposing of these appeals there is a technical issue which I must address. Mr. Ather, counsel for the Respondent, stated that the Appellant's Notices of Objection for the 1996 and 1997 taxation years were late. Mr. Ather said that the Appellant missed the final extension deadline for the 1996 and 1997 taxation years by one year and one-half. Mr. Ather said that with respect to the Notices issued on August 18, 2000 for the 1998 and 1999 taxation years the Appellant missed the deadline by three or four days.
[20] While the Tax Court of Canada does not have the authority to extend the deadline imposed by the Act to enable the Appellant to file a Notice of Objection within the time specified in the Act, I urge the Minister to recognize the Appellant's Notices of Objection to the Notice issued on August 18, 2000 for the 1998 and 1999 taxation years.
[21] I also urge the Minister to issue a remission of tax under section 22 of the Financial Administration Act on the basis that the appropriate tax assessed against the Appellant for the period commencing January 1, 1998 to the period ending December 31, 2000 is remitted to the Appellant.
[22] The appeals will be dismissed on the basis as outlined above subject to the request that the Minister issue a remission of tax for the 1998, 1999 and 2000 taxation years.
Signed at Vancouver, British Columbia, this 10th day of October 2002.
|
"L.M. Little" |
J.T.C.C.COURT FILE NO.: 2002-621(IT)I
STYLE OF CAUSE: Yvonne Henry and
Her Majesty The Queen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 22, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge L.M. Little
DATE OF JUDGMENT: October 10, 2002
APPEARANCES:
For the Appellant: The Appellant herself
Counsel for the Respondent: A'Amer Ather
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2002-621(IT)I
BETWEEN:
YVONNE HENRY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals heard on July 22, 2002, at Toronto, Ontario, by
the Honourable Judge L.M. Little
Appearances
For the Appellant: The Appellant herself
Counsel for the Respondent: A'Amer Ather
Judgment
The appeals from the assessments made under the Income Tax Act for the 1995, 1996 and 1997, 1998, 1999 and 2000 taxation years are dismissed in accordance with the attached Reasons for Judgment.
Signed at Vancouver, British Columbia this 10th day of October 2002.
|
"L.M. Little" |
J.T.C.C.